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Legalization of Cannabis and the Workplace – A Game Changer?

The Federal Cannabis Act, the Federal Cannabis Regulations and the Ontario Cannabis Act, 2017 (the “Ontario Act”) will change the legal landscape of the use and possession of recreational cannabis on October 17, 2018. When cannabis is legalized on October 17, 2018, the Federal Cannabis Act will permit individuals who are 18 years of age or older to possess up to 30 grams of cannabis in public. Ontario’s Government passed legislation that will increase the minimum age and individuals will need to be 19 years of age and older to buy, use, possess and grow recreational cannabis. In addition to determining age limits, Provinces have also been given the authority to determine where individuals will be permitted to smoke and vape cannabis.

The Ontario Liberal Government proposed restrictions on the use of cannabis in public spaces. On September 27, 2018, the Progressive Conservative government announced Bill 36 (the “Bill) which, if passed, would relax the restrictions on the use of cannabis in public places. When recreational cannabis becomes legal on October 17, 2018, Ontario residents will be able to smoke and vape cannabis wherever the smoking of tobacco is permitted (with certain exceptions). While the legalization of cannabis and the relaxed restriction on public use has received varied responses, one thing is for sure, Ontario employers are concerned about how legalization and the anticipated trend of increased use will affect the workplace. The foremost concern expressed to our labour and employment lawyers relates to workplace safety as well as decreased productivity and performance, attendance and testing for impairment. So how will legalization impact the workplace?

Let us be perfectly clear. After October 17, 2018, there is NO absolute legal right to use cannabis at work, even with a prescription or medical authorization. The Ontario Act will still prohibit the consumption of cannabis in a workplace as defined by the Occupational Health and Safety Act. Employers have the right and obligation to ensure a safe workplace and are also entitled to expect that employees will be productive while at work. At the same time, however, employers are required to respect and comply with existing laws, including the Human Rights Code as it relates to the accommodation of disabilities.

The law currently requires and will continue to require employees to report to work fit to perform their duties. The law currently requires and will continue to require employees attend work and perform their duties competently. These workplace standards and expectations are generally implied into the employment relationship.

Where an employee reports to work impaired, whether due to the effects of alcohol, medication and/or cannabis (medical or recreational), the employee most likely will have violated their employment contract. Depending on the circumstances, an employer may be entitled to perform drug testing and/or impose discipline including a just cause termination.

The legalization of cannabis on October 17, 2018, will not be a game changer. The fact remains that as at October 17, 2018, employers will continue to treat cannabis impairment in the workplace in the same manner that they have historically dealt with concerns of impairment in the workplace due to alcohol and/or medications. The legalization of cannabis is NOT a license for use and impairment in the workplace.

The legal landscape of drug and alcohol testing will also continue to apply. Employers are currently entitled to conduct reasonable cause, post incident, and in some cases post treatment return to the workplace drug and alcohol testing. Random drug testing has not been fully endorsed in Canada, save for those workplaces that may be considered inherently dangerous and even then, only where an employer can satisfy certain criteria. Random drug testing may also be imposed in certain industries, for example in transportation where employees conduct cross border runs and are subject, for example, to the New York State, Department of Transportation regulations.

Employers will still be permitted and required to take measures to ensure a safe workplace. With the exception of medical marijuana, it will be perfectly acceptable for an employer to outright prohibit the use of recreational marijuana, illicit drugs and alcohol in the workplace subject to consideration of human rights laws as it relates to disability management and the duty to accommodate addictions.

The fact remains that while we compare the management of the legalization of cannabis in the workplace to the management of alcohol, the detection of cannabis impairment is likely more complex and uniquely difficult to detect and/or measure consistently.

With October 17, 2018 just days away, employers are encouraged to review the status of their current workplace rules, policies and employment contract provisions. For those with no workplace drug or alcohol policy, create a policy that incorporates cannabis use and addresses the unique treatment of medical marijuana and properly used prescription drugs.

Review existing drug and alcohol policies. Consider whether it incorporates cannabis use. Update your policy to include reference to cannabis, alcohol, medical marijuana, medications and/or other intoxicants that may cause impairment and affect your workplace. Consider a protocol for disclosure of dependency/addiction issues and non-disciplinary protocols where it is suspected that an employee is struggling with a dependency issue. Identify employee assistance plans that may be available to accommodate employee needs through a rehabilitation or treatment program.

Consider questions regarding possession of cannabis at the workplace even if it is inaccessible and out of sight. Some employers may prohibit possession of cannabis at work particularly where the workplace is one that is safety sensitive. Others will prohibit possession on the basis that possession makes access and use easier.

Consider that legalization will likely normalize cannabis in society. Will your policy prohibit the gift of cannabis even though a bottle of wine or alcohol has been given or received during holidays and so forth? Will it prohibit the gifting of cannabis paraphernalia?

Several workplace policies may have an exemption to possession and consumption of alcohol during social events. With legalization, the use of cannabis will become normalized and more socially acceptable. Still, employers in determining a similar exemption for cannabis will need to balance their obligations to health and safety and human rights laws. Consider how to balance use at social events and any impact that it may have on others in the workplace with scent sensitivities or allergies to cannabis that must be accommodated under our human rights legislation.

Consider your dress code policies. Several employers may permit a dress down day or “casual Fridays”. Are employees currently permitted to wear clothing containing alcohol logos at work or outside work when representing the company?

Consider on call policies in the context of remaining fit for work.

Ensure that your testing policy, if any, is clear as to your rights as an employer. Identify a testing protocol and procedure. Most importantly, given concerns over existing testing technology, keep track of the latest updates in testing technology and case law around drug and alcohol testing in Canada.

Of course, what is key to managing the impact of legalizing cannabis on the workplace, is education and training. Ensure that all employees, particularly managers, are aware of identifying the signs of impairment and that all employees understand your policy and their joint responsibility in facilitating workplace safety.

The use of drugs and alcohol and the impact on today’s workplace has been and will continue to be a complex issue. Understanding the legal implications of legalization on your workplace is imperative.

Leanne Standryk is a senior partner at Lancaster Brooks & Welch LLP and works within the Labour & Employment department. If you require her assistance on a labour or employment issue she may be contacted at 905-641-1551

The foregoing information is provided to you for information purposes only. We caution you to obtain legal advice specific to your situation in all circumstances.

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